Walton v Victims Compensation Fund Corporation

[2002] NSWDC 17

New South Wales

District Court

CITATION:	Walton v Victims Compensation Fund Corporation [2002] NSWDC 17
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Dean Kenneth Walton Victims Compensation Fund Corporation
FILE NUMBER(S):	163 of 2002
CORAM:
CATCHWORDS:	shock - disability - exacerbation of pre-existing condition - Schedule 1(5)
LEGISLATION CITED:	Victims Compensation Act 1996 District Court Rules 1973
CASES CITED:	Victims Compensation Fund Corporation v Ainsworth 51 NSWLR 466
DATES OF HEARING:	10 May 2002
DATE OF JUDGMENT:	10 May 2002

JUDGMENT:

HIS HONOUR JUDGE WILLIAMS: This is an application for leave to appeal against the refusal of the Victims Compensation Tribunal to award compensation to the appellant.

S 39(3) of the Victims Compensation Act 1996, which was the relevantly applying Statute at the time, provides for an appeal process to the District Court. Subsection 1 requires an appellant to seek the leave of the District Court to appeal.
Division 7 of the District Court Rules applies to appeals under the victims compensation legislation. Part 6 Rule 60C said that “Applications for leave to appeal must be made by way of notice of motion under Part 16”. Subrule 2 requires such notice of motion be made within two months of the relevant date. In s 39(2)(a) of the Victims Compensation Act, subrule 3 requires a similar notice of motion if it is sought to extend the date in subrule 2 for the making of or seeking leave to appeal.
S 39 of the Victims Compensation Act allows an appeal to be brought within three months of the relevant date, which is the date that the Tribunal’s decision was notified to the person concerned.
In this matter, the appeal was lodged within three months of the relevant date but the notice of motion for leave was not. Nor is there before me a notice of motion to extend the time under subrule 2 of Part 6 Rule 60C.
However, I am satisfied that no prejudice has been sustained to the Victims Compensation Tribunal by virtue of the delay which occurred because the appellant’s solicitor was unaware of the provisions in the District Court Rules in regard to Victims Compensation Act appeals.
No great opposition was put by Mr Burchett, who appeared for the Victims Compensation Tribunal, and in all the circumstances I extend the time for filing the notice of motion required by Part 6 Rule 60C and I treat the application made by Mr Timmins of counsel for the appellant as an oral notice of motion under Part 6 Rule 60C(3) and grant that application for an extension of time in order that the application for leave to appeal can proceed.
As I said leave to appeal is sought against the Tribunal’s refusal to award compensation to the appellant Mr Walton under the Act. The Tribunal gave its decision on 3 October 2001. It found that an act of violence had been established.
The appellant, prior to the act of violence alleged, which occurred on 6 July 1997, suffered from Tourette’s syndrome. This is described as a neurologically-based disorder involving involuntary jerky movements and crying out, sometimes repetitive calling out of obscene words.
For the purpose of the application for leave to appeal, I have had regard to the only medical evidence tendered before the Tribunal, namely a report from Dr Wendy Louise Walker, a consultant clinical psychologist, dated 24 April 1998.
The compensable injury the appellant sought to make out before the Tribunal was shock as set out in clause 5 of Schedule 1 of the Act. As such the appellant, in order to be awarded compensation, needed to establish that the symptoms and the disability of that injury persisted for more than six weeks. Clause 5(b) sets out the injury, that is:

“The injury comprises conditions attributed to post traumatic stress disorder, depression and similar conditions”.
Clause 5(c) sets out the psychological symptoms which include anxiety, tension, insomnia, irritability, loss of confidence, agoraphobia and preoccupation with thoughts of self harm or guilt. Clause 5(d) is not applicable in this case. Clause 5(e) sets out the relevant disabilities applying to the injury of shock which include impaired work or school or other educational performance, significant adverse effects on social relationships and sexual dysfunction.
I presume that the word ‘includes’ set out in clause 5(c) and (e) does not necessarily restrict the disabilities or the symptoms to those matters set out in that particular section.
I propose to read some aspects of Dr Walker’s report. I do not read the whole report because that is unnecessary but there are some particular matters that I think I need to emphasise. Firstly, it is apparent that she interviewed the appellant on 18 and 29 July and 29 September. She interviewed him and his parents for a further hour on 24 April 1998. He apparently in this incident suffered some physical injuries but the Tribunal found that there were no disabilities resulting from those. On the question of background Dr Walker reports that:

“The appellant’s mother suffers a mild form of Tourette’s syndrome and tragically at the age of twelve, with the onset of puberty, Dean” - that is the appellant - “also developed the syndrome which ruined his adjustment and scholastic performance at high school and as well as making him the object of ridicule which was causing him severe anxiety and panic attacks. Before the onset of Tourette’s syndrome, Dean suffered severe anxiety.”
She noted that he was under treatment by a neurologist and also noted that, whilst stress and anxiety can make the disorder more intrusive, it is not thought to be psychologically based and Dean’s father reported that his EEG had shown the typical patterns of immaturity of brain function. She continues that:

“His parents allowed him to leave school before he was fifteen years of age as he could not cope with the mocking from other students. Before the onset of Tourette’s syndrome Dean had been a friendly, good-natured boy who excelled in sport. Since leaving school he has been on a disability pension. His parents moved to the Central Coast where he has made a number of good friends. Before the assault his Tourette’s syndrome symptoms had been seeming to settle with active medical treatment and he was hopeful of being able to get a job.”
I do not propose to deal with the circumstances of the assault because that is really irrelevant to this application. However, Dr Walker, after dealing with those factual matters, says:

“After this event Dean and his parents were extremely upset and agitated. Both Dean and his somewhat vulnerable mother, who also suffers Tourette’s syndrome, experienced the full range of symptoms of post traumatic stress disorder. Dean’s symptoms of Tourette’s syndrome increased so that his father found it almost impossible to drive with Dean in the car. Dean normally lived in his own apartment in the parents’ home but after the attack he was too afraid to be downstairs alone and needed to be closer to his parents. His involuntary cries and shouts upset his mother further. Dean suffered invasive thoughts of the attack and his sleep was disrupted by vivid nightmares replaying the event. Dean found he often burst into tears. He felt vulnerable, hypervigilant, irritable and withdrawn. By the end of September 1997 Dean’s mental state had deteriorated rather than improved. Dean had tried living with friends but that had not worked.”
And there are some other matters I do not think particularly relevant. She goes on:


“Dean spent most of his time between September and February in Queensland. He told me in our interview last week that he was terrified of reprisal by the Crown Sergeant, that he had been mostly unable to stay at home. His hypervigilance had been extreme and his startled response exaggerated. Not surprisingly his Tourette’s symptoms increased. When he was home for brief times his symptoms infuriated his mother.”

Then she continues:

“In our recent interview he had been suffering constant invasive thoughts of the assault and of the possible revenge by the Crown Sergeant. He suffers vivid nightmares both of the original incident and of being attacked or set up by the Crown Sergeant again. He is obsessed by the fact that his friend’s father, a police officer, had urged Dean’s father to drop the complaint.”

Then she goes on a bit further:

“Dean himself is planning to begin pre-university studies next year but his immaturity is such that he is unlikely to complete them and further the symptoms of PTSD are so severe that his concentration and memory will be a problem. Dean requested regular sessions with me for counselling and hypnosis which he hopes will calm him and modify the Tourette’s syndrome.”
She then carried out a number of psychological tests on him which she found were consistent with clinical impressions of PTSD, post traumatic stress disorder, of moderate severity. She then went on under a separate heading to set out the criteria for the determination of post traumatic stress disorder and, in particular, she marked on that criteria those that she thought were applicable to the appellant. The first, A, that “the person has been exposed to a traumatic event in which both of the following were present”:


“1. The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others” and

2. The person’s response involved intense fear, helplessness or horror.”
She found that both those were present in the appellant.
Under the heading B she found three matters relevant to the appellant. B is “The traumatic event is persistently re-experienced in one or more of the following ways”. She found three. They were:


“1. Recurrent, intrusive, distressing recollections of the event including images, thoughts or perceptions.

2. Recurrent distressing dreams of the event.

3. Acting or feeling as if the traumatic event were recurring. Includes a sense of reliving the experience, illusions, hallucinations and disassociative flash-back episodes including those that occur when awakening or intoxicated.”

Under the heading C, which is “Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness not present before the trauma”, it is necessary that at least three or more of the following be present and she found the following format is present:


“1. Efforts to avoid thoughts, feelings or conversations associated with the trauma.

2. Efforts to avoid activities, places or people that arouse recollections of the trauma.

4. Markedly diminished interest or participation in significant activities.

5. Feeling of detachment or estrangement from others.”
Under heading D, which is “Persistent symptoms of increased arousal not present before the trauma as indicated by two or more of the following”, she found all five applied. They are:


“1. Difficulty falling or staying asleep.

2. Irritability or outbursts of anger.

3. Difficulty concentrating.

4. Hypervigilance.

5. Exaggerated startled response.”
Category E, “Duration of the disturbance”, that is the symptoms in criteria B, C and D, is more than one month she found applied and F, “The disturbance causes clinically significant distress or impairment in social occupation or other important areas of functioning”, she found applied. Her conclusion is as follows:

“The appellant is a pleasant, friendly young man suffering Tourette’s syndrome which had already devastated his schooling and prevented his seeking employment. He was the victim of an unprovoked and quite violent beating with a baton by a police sergeant. He suffered physical injuries and PTSD which resulted in a marked increase in symptoms of Tourette’s syndrome. The latter has severely disrupted his family life with his already stressed and worried parents. Dean’s prognosis is only reasonable despite the fact that he is eager to come for regular sessions with me. He was already vulnerable before the attack.”
Faced with that material, the Tribunal proceeded to deal with Mr Walton’s particular matter. As I said, the Tribunal had already found that an act of violence was established. I will just read from the findings:

“The report indicates this appellant suffered a broken fibula, a torn muscle in his left arm, post traumatic stress disorder and a marked worsening of the Tourette’s syndrome from which the appellant suffers. The reports from Dr Milne and Dr Willis only refer to the possibility of a small green stick fracture and Dr Willis seems to treat it as a matter of no significance. I am not satisfied as to this injury.”
And I understand that what the learned Chairperson refers to there is that he does not find any continuing relevant disability in respect of the physical injuries.
The Tribunal then referred to various matters of a historic nature that came out in Dr Walker’s report and continued:


“The appellant’s parents are clearly upset by this incident and the impact it has had on their son but the appellant must establish a disability not the parents. The appellant normally lived in his own apartment in his parents’ home. It is unclear from the report for how long he vacated that apartment to be closer to his parents. The appellant’s father found it almost impossible to drive with the appellant in the car because of the increase in the symptoms of Tourette’s syndrome.”

And the following words are important, I feel:

“I see no disability on the part of the appellant arising from the post traumatic stress disorder as distinct from an exacerbation of the symptoms of Tourette’s syndrome.”
The learned Chairperson then reviewed some other matters and referred to the definition of Tourette’s syndrome that Dr Walker had in her report and said:


“I do not think that the exacerbation of that syndrome, that is the Tourette’s syndrome, is compensable unless it leads to a compensable injury in accordance with clause 4 of Schedule 1 of the Act.”

He went on to say:

“I am not satisfied, having regard to the material before me, that the compensable injury of shock is established in that I am not satisfied that any disability has been established which has persisted along with the symptoms for more than six weeks.”

He then declined to award compensation.
Dr Walker’s report clearly indicates that the appellant, as at 24 April 1998, that is well in excess of six weeks after the act of violence, was still suffering from post traumatic stress disorder and that the post traumatic stress disorder, amongst other things, resulted in a marked increase in the symptoms of his Tourette’s syndrome. It is somewhat unclear from the report whether Dr Walker is saying that the PTSD or the marked increase in the Tourette’s syndrome was responsible for the appellant’s severely disrupted family life. However, earlier in the report, at pages 5 and 6, she listed the psychological symptoms relevant to her diagnosis of PTSD that were unrelated to any question of the existence of Tourette’s syndrome or any exacerbation of it.
The Tribunal found, in this regard, that it could not see any disability arising from PTSD as distinct from an exacerbation of the symptoms of Tourette’s syndrome. By this I presume the Tribunal is saying that, if Tourette’s syndrome is taken out of the equation entirely, then the appellant was not disabled as a result of any post traumatic stress disorder.
If that is the case, in my view, the learned Chairperson has misdirected himself as to the effect of the only evidence on the subject before him which, in my view, clearly indicates that the appellant was suffering from post traumatic stress disorder plus an exacerbation of the Tourette’s syndrome as at April 1998.
In my view, that was not a direction available to him on the facts which are contained in Dr Walker’s report.
Having misdirected himself in that regard, the learned Chairperson then found that the exacerbation of the Tourette’s syndrome was not compensable unless it led to a compensable injury. I would, with respect, agree with that proposition as it stands, without having regard to any other considerations. The learned Chairperson then went on to say that:

“I am not satisfied, having regard to the material before me, that the compensable injury of shock is established in that I am not satisfied that any disability has been established which has persisted along with the symptoms for more than six weeks.”
This, I presume, means that the compensable injury of shock had been established but that any disability or symptoms of it had not persisted for more than six weeks.
Clearly, on any reading of Dr Walker’s report, that cannot be correct. Dr Walker diagnosed post traumatic stress disorder as continuing in April 1998 with only a reasonable prognosis for recovery. Post traumatic stress disorder is an injury recognised in clause 5(b) of Schedule 1 to the Act. Further, the symptoms of post traumatic stress disorder applying to the appellant are set out at pages 5 and 6 of her report with some degree of particularity and, in addition and because of the post traumatic stress disorder, there has apparently been an exacerbation of the pre-existing Tourette’s syndrome. At page 4 of the report she stated:

“The appellant’s symptoms of PTSD were so severe the appellant was unlikely to be able to complete pre-university studies because of problems with concentration and memory.”
Whilst it is true that it is for the appellant to establish a disability, Dr Walker’s evidence suggests that the appellant suffered post traumatic stress disorder which also exacerbated the Tourette’s syndrome. That exacerbation of the Tourette’s syndrome caused significant adverse effects on the appellant’s family relationships.
The post traumatic stress disorder of itself was impinging on his educational performance or likely to impinge on his educational performance. Those are the type of disabilities referred to in clause 5(e) of Schedule 1 of the Act and were continuing as at April 1998.
I am satisfied that the learned Tribunal misdirected itself in regard to the matters referred to above in that it has made findings of fact which are inconsistent with the only evidence available to it.
As far as the aspect of the plaintiff’s shock injury affecting the Tourette’s syndrome of course the Tribunal would need to take into account the appellant’s pre-existing condition as is envisaged by clause 4 of Schedule 1. In this regard I note what was said by Mason P in The Victims Compensation Fund Corporation v Ainsworth which is reported at 51 NSWLR at 466. At page 472 his Honour said:


“In the case of shock it is not an automatic answer to a claim that the victim displayed symptoms and/or disability before the act of violence. There will be circumstances where a worsening of the symptoms and disability by virtue of an act of violence would lead to an affirmative finding. The Act speaks of a direct result not the direct result.”

His Honour went on further at page 474:

“Symptoms and disabilities may stem from an act of violence. If they do to the degree that a finding of a direct result is made that similar symptoms and disabilities had manifested themselves before would not provide the knock out blow suggested by the Tribunal. After all, clause 4 of Schedule 1, as I have interpreted it, actually recognises that aggravation et cetera may result in a compensable injury.”

I am not satisfied that my findings above are matters that fall within the exclusions contained in s 39(3)(a) or (b) of the Act. I therefore grant leave to appeal.
Having regard to the nature of the legislation and the proceedings thereunder, it seems to me otiose to not proceed to deal with the merits of the appeal immediately although, as Mr Burchett pointed out, the scheme of the legislation and the District Court Rules suggests a two stage process. To proceed in that way in this case would simply add to the costs.

For the reasons already given, I will allow the appeal and remit the matter back to the Tribunal to be considered and determined again, having regard to the matters set out in this judgment.

HIS HONOUR: What happens about costs in these sorts of things?

HALL: Costs follow the general District Court Rules, there is no special scale in the Act provided for costs, it’s just costs be agreed or assessed.

TIMMINS: That’s the order that I’d seek. The respondent to pay the applicant/appellant’s costs of the appeal to be agreed or assessed.

HIS HONOUR: I make that order then.